Imagine you needed heart surgery. Imagine also that you were told that among the factors that decided what surgeons you could choose from was “diversity”. And not a diversity of applicable talents and skills, but political and cultural diversity. Then imagine that you read this in the news about the hospital where you are to have the procedure performed:
The chief of cardiac surgery at Local Hospital has picked 24 surgeons to head up cardiac surgeries, with an emphasis on naming women and minorities to head the surgical teams.
Dr. X, a surgeon in West Palm Beach, Florida, and the head of cardiac surgery at Local Hospital in an order on Friday said she wanted to promote diversity through her selections, which include 13 women.
Dr. X’s decision bucked long-running trends in cardiac surgery, in which women and minorities have for years struggled to secure positions as lead surgeon for complex cardiac surgical procedures.
From 2016 to 2017, men were three times as likely as women to be appointed to leadership positions for complex cardiac surgical procedures.
Dr. X said she was “particularly impressed by the number of applicants who have started their medical practices, especially the number of female founding surgeons who applied for roles in these complex cardiac surgical procedures.
Yet Dr. X noted only 31% of the 62 applicants for leadership positions were women, signaling “much work remains to be done” so more could be named to senior leadership positions. Only a few applicant physicians were minorities and none were gay, she said.
“Dr. X has clearly embraced the concept that diversity and new talent are necessary in complex cardiac surgical procedure leadership appointments,” one observer said.
How important is that kind of diversity to you when hiring a professional to provide a service for you that affects your life? Or your pocketbook? How important is it to you that your heart surgeon be a woman? Or black? Or gay? Or a member of some other minority group?
Would you want a straight white man to operate on your heart, even if he was not the best surgeon available to you? A Japanese transsexual to operate on your heart, even if they were not the best surgeon available to you? Could any reasonable person honestly be faulted if that person held the opinion that such an idea is irrational, even reckless and irresponsible?
Thus, could any reasonable person, regardless of whether that person is a surgeon, honestly be faulted if that person held the opinion that choosing a heart surgeon on the basis of racial or gender or sexual orientation diversity—even if that basis were even just one of many reasons for the choice—is irrational?
Indeed, could an intellectually honest argument be made that such an idea is objectively irrational?
Is being a woman or being black or being gay or being a gay black woman or being possessed of any mere identity trait clearly has nothing to do with (and inherently cannot have anything to do with) a surgeon’s competence in performing surgery?
Unless you yourself have some bias against a doctor’s sex, race, religion, etc., then performing the surgery as well as possible—not “diversity”—is the only goal (or at least the primary goal) that matters in attempting to save the life of the patient?
Is it not true that promoting surgeons on the basis of their being black or brown or women or gay or queer 1) cannot improve the quality of surgery; and 2) cheapens the competent, even peerless, minority surgeons by rewarding their status over their skill?
Those are the questions. And the answers are all “yes”.
Here’s why: imagine that you are a litigant in a lawsuit, then substitute “surgeon” for “lawyer” and “complex cardiac surgical procedures” with “multidistrict litigation (MDL)” in the hypothetical new story and you get this (except it is not a hypothetical or fictitious story, it’s real):
No reasonable person, regardless of whether that person is a judge or lawyer, could be faulted if that person held the opinion that deeming political or cultural diversity as of greater value than—or even equal to—actual competence as a lawyer is irrational.
Now I realize—cynical as it may be—that sometimes it may make plain good sense to hire a lawyer on the basis of sex, race, etc. For example, one of the (white) men charged with killing Ahmaud Arbery (who is black) might reasonably believe that the optics of having a black man or black woman as his criminal defense lawyer could help dispel the idea that the defendant is a racist and/or that his shooting of Mr. Arbery was a hate crime. Even then, however, the rational defendant would not base the choice on race alone; once he has the black attorney box checked, he’d still want—or at least benefit more from—the most competent of the black attorneys.
And this Zantac case is a class action product liability suit. Not a hate crime case, not a sexual harassment case, not a gay wedding cake case, not even a school busing case. The medium is not the message. Not even close.
Of course, decent people will stand up to ensure the only gay person in the company gets fair treatment, urge that poor but scrappy intern—regardless of skin color—to go to college, and encourage that talented woman (or man) to apply for CEO. Mentoring and championing the causes of minorities in the professional workplace is laudable, but only to the extent it does not supplant or compromise professional competence and quality.
Whether your Zantac case lead counsel are women, black, or gay, or a member of some other marginalized and/or oppressed class plainly has absolutely nothing to do with whether you can prove Zantac causes cancer. The color or sexual orientation of lead counsel is utterly irrelevant. Otherwise stated, this is a justice issue, not a so-called social justice issue.
Because if the blacks/gays/women appointed to lead counsel teams are not the most competent attorneys for the job, I submit that it is not only bad business, but bad legal ethics to appoint counsel on the bases of minority status. If the plaintiffs want diversity among their lawyers, that’s their call, not the court’s. Competence is what matters, and only what matters, in a lawsuit like this. Not melanin, not hormones, not the judge’s political agenda.
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